Friday, January 29, 2016

Choyzang Tashi /ACC/OAG Case Analysis:

There was quite a publicity about alleged corruption cases surrounding Choyzang Tashi, a Director in Government Service. More so because he had served as Regional Director and then as Director of Revenue and Customs. The allegation drew wide public attention because it came up during the ACC massive hunt in the alleged wrong doings of few officials of Revenue and Customs supposed  collusions with businessmen to avoid paying taxes on goods imported into the Country at the entry gates.

Now the case against Choyzang Tashi is in the Court. And strangely the case has nothing to do with Tax Evasion. And shockingly, the actual allegations are far removed from his official responsibility and authority as the Regional Director and then Director of Revenue and Custom.

The case filed in the Court is on charges of Forgery. However, the actual substance of the cases are more a case of Fronting than Forgery. The case is about trade licences issued in the names of the mother-in- law and sister-in-law of Choyzsng Tashi being leased to an Indian national on a monthly fee system. The fee is said to be Nu: 2500 per month. This arrangement is officially termed by Trade Department as Fronting. That means someone other than the actual licence holder is operating the business.

Now the charge against Choyzang Tashi is that he processed the formalities on behalf of his in- laws for obtaining the two licences. We all know that in our extended family society, it is a requirement by tradition for a family member to assist less knowledgeable members to get things done. How is it a crime for Choyzang Tashi to process the trade formalities for and on behalf of his in-laws as long as they the in- laws were fully aware of the deed and in fact had sought his assistance to obtain the licences. There is nothing illegality about it.

What is a forgery crime? It is a crime only if you forge some document or signature of another person with the intention to harm that person or accrue self benefit. Here the in- laws were not harmed. Choyzang Tashi did not personally benefit. In fact he helped his in- laws by processing the trade formalities and obtaining the licences.

Now one might say the trade licence rule was played around because the actual applicants had not signed the application forms. However, how did or how much Trade Department suffer as a consequence. Nothing. The Trade Department did not suffer any tangible loss. If the Trade Department felt the real necessity of ensuring nitty gritty formality correctness it should have insisted upon the licencee signing on the trade licence prior to handing over the same to the possession of the applicant.

Both the in-laws of Choyzang Tashi are Bhutanese citizens and there should be Police Clearance Certificates issued in their names that qualified them to apply for trade licence. Choyzang Tashi cannot fake Police Clearance Certificates for his in-laws.

The crux of the matter is that no matter who signed ( the applicant themselves or by someone on their behalf ), a Bhutanese would not have been issued a trade licence if he or she did not produce Police Clearance Certificate. Trade Department issues licences only to Bhutanese cleared to do business. Whether the applicant name is Dorji or Wangmo related to whom or from which region of Bhutan does not matter. And it should never matter. The fact that Choyzang Tashi a known official processed the formalities could very well speeded up the process. That is how things function in almost all fields. But licence would have been issued in the end even if the applicants had got some other lesser known persons to help them if they were  ill disposed to do the same by themselves.

Therefore, the forgery charges holds no water as long as the Applicants were fully involved as a party to the processing of the formalities by Choyzang Tashi on their behalf and as long as the monthly leased fee for the licences ultimately benefitted the licence holders. It was morally wrong for Choyzang Tashi to arrange the Fronting for his in- laws. But how many of us can pass the various morality tests. Even then let Trade Department authority decide who should be legally held responsible for the Fronting deed the actual licence holder or other third parties.

Bhutanese are still very much bonded to our age old tradition. The more knowledgeable and able must help the lesser able and knowledgeable among the extended family community. The more able are expected to look out for their lesser able members in employments, school seats for children and sometimes even help to set up business. There is no Social Security System in Bhutan. The more able members are the Social Security of the less able members in Bhutan.

How could ACC blow up the allegations to such high proportion? I for one thought that Choyzang  Tasji was being investigated by ACC for possible collusion with businessmen in evading taxes on imported goods. If that was the case then he had compromised and misused his official responsibility and authority and rightly he should be charge sheeted in the Court of Law. But for helping his in- laws in his personal capacity to process trade licence for the in- laws who are legally entitled anyway, it is absurd for ACC to waste such disproportionate time and money.  The case should have been handed over to Trade Department to handle as per Trade Rules and Regulations on Fronting.

The whole case surfaced because a licence in Bhutanese name was operated by an Indian. And so it is a clear case of Fronting and Trade Department has the capacity to deal with such cases under the Trade Rules and Regulations. The charges of Forgery tantamount to persecution under the facade of prosecution. And this should not be happening to Choyzang Tashi or any other Bhutanese.

Fronting is not permitted but it is widely prevalent. People do construction works under someone else contract licence. Bar licences are rented out. In fact there was quite a hala about Drayangs running Bars under leased Bar Licences.

The three in- laws of Choyzang Tashi are also being charge sheeted in the Court. The charges are based on their alleged attempt to tell ACC that Choyzang Tashi was not at fault. They themselves were responsible for Choyzang Tashi processing the licences for them. In total sum this was what happened.

People panic when ACC or Police Teams knock upon their doors in the dead of the night or out of blue. Therefore, their statements made under mental duress could vary. But Drangpons are professionals and their Honours have the inbuilt legal intuition to draw relevant conclusions from seemingly differing statements. 

I share this analysis purely out of my pursuit for Justice. Choyzang Tashi may have heard about me as I came to know about him. I do not know him or his family members socially. This analysis is just thoughts provoked by my natural interest in judicial matters upon reading about the court case courtesy Kuensel Issue of 28th January, 2016.

May Justice Prevail !

Sunday, January 24, 2016

National statistic on court cases on sex. ( courtesy Kuensel )

2015 national statistic:   
              Rape down by        -  27%
              Prostitution up by +150%

What does this indicate ? What would be more acceptable to the society ?

There seems to be a startling relation between prostitution and rape. Maybe adult prostitution should be either legalised or less stringently harassed.  Socially Bhutanese are not that puritanical in thoughts or deeds when it come to sexual affairs.  Prostitution would not eliminate rape but it seems it has a reducing effect when statistic is compared.

There would be many pretentious and also genuine advocates against prostitution even though Bhutanese are one of the most liberal minded people when it comes to casual sex. Traditionally we were not even disturbed by intimate relationship between same sex. Now of course the world also think like Bhutanese.

So what is so wrong about commercial sex when boy friends and mistresses and live in couple are part of social character. Is money so repulsive when most agreement and  disagreement are centred around money. When it is alright for people to sell their soul and loyalty for money and position, how could commercial sex be so bigotry in nature.

Saturday, January 23, 2016

What really is the truth about HIV ?

It is said the disease is not spread by body fluids like saliva, tears or sweat or kissing and not even by mosquito bite ( reference youth focus article Kuensel ). It seems HIV is primarily spread through unprotected sex and blood transfusion. And yet mosquito bite does not spread HIV though blood is involved if a mosquito bites a HIV person and then bites a non- HIV person.

What could be the difference between other body fluids and genital fluids.? And what is the difference between HIV blood passed on through direct transfusion and through mosquito ?

How does a human body compartmentalise a disease that it is contagious only through direct genital to genital contact and blood transfusion in more volume than what a mosquito can pass on ? Are world authorities on HIV being totally honest or declaring convenient statements to protect social life of HIV patients ?

Monday, January 18, 2016

The Whole Story Zimdra Food Pvt. Limited and Bhutan Football Federation Money.

Kuensel carried a story of BFF funding Zimdra Food Pvt. Ltd. to the tune of Nu: 30 million @ 10% interest per annum. A conflict of interests theory sprouted because the President of BFF is also associated with Zimdra Food. The Kuensel story has been followed up with clarifications from the President of BFF Dasho Ugen Tsechup who is also the Promoter and probably major share holder of Zimdra Food. He expressed  his unhappiness with Kuensel 's part coverage of details and goes on to provide the whole story. His side of the story was published today the 18th January,2016 in Kuensel Issue under ' My Say ' column.

One may wonder as to what product does Zimdra Food produce?  Ngultrums !  The declared financial deals with BFF, the Central Dratsang and Gantey Shedra are more like Fixed Deposit Schemes that Banks offer or Public Bonds sold by Security Firms on behalf of Corporations who obtain RMA approval.

Dungsum Cement Corporation and Royal Insurance Corporation of Bhutan have sold bonds in the open market to raise cheaper funds, upon approval from Royal Monetary Authority. Unlike shares, bonds fetch a fixed return and some provide for encashment option if required. Banks could also readily accept bonds as mortgage instruments for loans.

Is Zimdra Foods also a Financial Company?  Or has it been authorised to float Public Bonds? The main question here is legal propriety not the issue of conflict of interests as made out to be. When a deed is deemed to benefit all participating  parties, there cannot be conflicts of interests except maybe in the eyes of the law. And laws can choose to be blindly ignorant in almost all nations. However, it is also very possible that its all done legitimately. So why the controversy?

What Dasho Ugen Tsechup has described is a very traditional business style. Money lending against fixed return is a common age old Bhutanese social and economic character. The Courts in Bhutan are infested with Cases related to such loans. These loans happen generally between individuals. Under the Revenue rules on PIT or BIT or CIT , expenses to meet interest payments for loans from outside the Financial Institutions are not deductible operating expenses. Thus Companies do not generally borrow money from outside circles.

However, if you are starting a new company without much capital in hand, gaining large capital in form of Fixed Deposits with just 10% annual interests  liability is simply an irresistible temptation. It is manna from Heaven. And its all the more attractive if the lender or depositors does not seek tangible guarantee other than verbal or written assurance. However,it is quite impossible for just any average businessman or industrialist to successfully raise capital in such traditional manner. You have to have the name and clout and bit of luck and favourable circumstances.

Under licensed trade, industry and commerce practice, an enterprise should not be infringing upon the rights of other enterprise. Thus generally, Zimdra Food is not expected to takeover banking activities. However, in Bhutan the legislations are very unfriendly to Savings culture. Bank interests on Savings are low and then interests on one year Fixed Deposits are just about 6% and again it is taxable income. . Therefore, many NGOs and retired people get a raw deal for their bank deposits. First Banks are not in position to give respectable interests rates and second the interest accrued is taxed by the Government. At one time, the DPT Government had talked of doing away with PIT on Fixed Deposits. It just remained a talk. Now with PDP Cabinet, the proposal seems to have been shelved or simply put on the back burner.

What Zimdra has done in the cases of the idle Funds of NGOs is to provide a window to earn 10% interests per annum. Provided the quantum of idle fund is large ( in Bhutanese context ) like the 3 crores of BFF, such opportunity present huge financial relief to individuals or organisation. Otherwise yearly inflations and expenses rapidly dwindle the Savings. Thus Zimdra financial scheme benefits both parties and fills a void in financial service. However, Zimdra is not engaged in piety works.

It is also very lucrative for a Company like Zimdra to avail such Funding because borrowings from Financial Institutions is far more expensive and repayment of interests and capital on monthly or quarterly basis creates extra financial pressure on Companies. Banks are quite strict in terms and conditions before sanctioning loans. And Bank loans are far more costly than the loans availed by Zimdra from NGOs.

Dungsum Cement financial woes were eased by floating Public Bonds @ 10% interest per annum. The  money raised through bonds issued was used to pay off high interests loans taken by the Company.  RICB also seeks capital  fund for its investment in similar manner.

The Zimdra Food Pvt. Ltd  Financial Scheme type is a welcome widow of investment opportunity for idle funds plus those old and retired individuals who depend on little savings they are able to hold on to. Like DCCL, Zimdra Food or any other Company can legitimately engage in such investment channels with RMA blessings.

It would make a world of positive economic impact if the Finance Ministry and RMA could liberalise Public Bond Issues backed by guaranteed Securities. Yes, in the bond market, guaranteed financial security of fund invested in the bond is most important. Otherwise the bond market will turn out to be a official Ponzi Scheme that will ultimately tumble down.  For example Dungsum Bonds are guaranteed by DHI.

There is a pool of Savings fund within the Country that if permitted to utilise beneficially can make huge difference to both commercial enterprises and Savings culture in Bhutan. Under prevailing rules, interests earned from Company bonds are tax free whilst Fixed Deposit interests earned from Banks are taxed. Thus it makes good investment sense to opt for guaranteed income of 10% per annum on idle fund as so offered by Zimdra Food Pvt. Limited.

Sunday, January 17, 2016

Thromde Election Scenarios.

Problems of over populated Thromdes and scanty Voters.

Enthusiasm for voting is inspired mostly by rival candidates' campaign push or Political Parties influence. In absence of Political Parties as in Thromde Election and with just one or two candidates standing for election, it is quite natural to expect very low voter turnouts. However,  the main drawbacks in voter turnout is simply lack of eligible voters among huge Thromde population.

The present rule permits only those who have census in the Thromdes to vote in the election of Thromde Thrompon and Tsokpas. Most residents in Thromde hail from different regions of Bhutan and have their census in their traditional home location.

One way to increase voter numbers would be to encourage those residents with immovable properties under Thromde to register their census also in the same Thromde. It may sound logical. However, there are huge underlying adverse national implications.

Can the delicately structured political system of Bhutan digest mass census migration to several urban centres such as Thimphu , Phuentsholing  and SamdrupJongkha? What would justify the continuation of present rural base constituencies for National Assembly Seats if population census moved out to urban centres? National Assembly should represent people not place.  And so its natural  for urban centres to expect/ demand more Constituency Seats to represent proportionate national population with their census in Thromdes.

There are many critical national reasons to avoid census migration to urban centres. Once totally cut off from any rural  connection, traditions and roots could disappear.  Overtime,  urban centres will have no roots and no particular identity and totally devoid of community instinct, affection or responsibility. True social integration or structured communities would be unheard of and culture a mixed bag as you sow, so shall you reap. If you are socially prominent there will be a crowd to share both your happy and sad occasions. But  otherwise you could very well be left isolated even among a crowd.
Such social environment does not encourage conducive nation building politics.

For national political stability and social harmony, maintaining census at traditional home base should be encouraged. Traditions and strong community system build positive social characters. And further, Bhutan cannot upset the traditional balance of power among the 20 Dzongkhags.

The establishment of so many Thromdes will inevitably bring about changes in social and political demography and also concepts. These could trample over the inbuilt mechanisms to protect traditional power centres. Might be more democratic in movement but social and political stability may fall prey to such demographic revolution.

However, the urban centre democractic deficiencies  should also be corrected. It is important that stakeholders are granted the opportunity to have their say in the administration of Thromdes.
Therefore,  the nation must  come up with new voting formula for Thromde Office Bearers Elections.  The Voter base in Thromde must be expanded to include those who have immovable assets like land and house under the Thromde and pay property taxes to the Thromde. This way stakeholders in Thromde can have their say through voting even though without census they cannot be candidates for Thrompon Post.

Candidates for Thrompon should have census in the Thromde but Tsokpas should be eligible from amongst all voters and also from established business proprietors who may not own immovable assets but nevertheless have important stake in the facilities and development activities of the Thromde.  

For better proficiency in administration and capability as members of Committee for main Thromde, the Tsokpas should have at least high school education. Otherwise they could be simply out manoeuvred by a well educated and experienced Thrompon. Such experienced and qualified Tsokpas have to be attracted through better pay.

Another suggestion for Candidates and Election Commission is that broadcast of information and notification is very effective through bulk SMS through Bhutan Telecom and Tashi Cell instead of News papers, Radios or Television. SMS not only alerts mobile owners but generates discussions and so spreads the messages very effectively. Not everyone listens to radio/ read papers or watch BBS TV. And relying on Tsokpas to notify voters is simply not bankable. But mobile culture is very vibrant in Bhutan even in the remotest corners where service is available. ECB ! Please promote democracy and voter participations  through reliable and vibrant mobile net works. Send bulk SMS ! Thank you for promoting genuine democracy culture.

Sunday, January 10, 2016

Comprehending Chunipai Losar ( Ist day of 12th Lunar Month ).

For the last many years, the 1st day of 12th Lunar Month was declared a national holiday. Long before that it seems it was celebrated as a Traditional Day in the Eastern regions of Bhutan. Going by reasons put forth, the Day is supposed to be a Day of  Offerings from harvested crops to Shabdrung.

However, there is no notable harvest that takes place during the 11th and 12th Lunar months. Also it cannot be an Offering to Shabdrung because he had died before Chhoegyel Minjur Tenpa brought the Eastern regions under the Central Authority.

Perhaps the 30th day of 11th Lunar Month was the official final day of Tax Collections for the Eastern regions. So it must have been a rest and relief day on the 1st day of the 12th Lunar Month. Not exactly a day to celebrate for joys but at least for the good riddence of the burdensome taxes for the year.

During those feudal days,the burden of taxes was heavy and merciless. Taxes were in kinds like paddy for owning rice fields and butter for owning cow. In addition other material taxes were levied though the products were not grown or manufactured by the farmers. Then there were conscripted human labour and porterage taxes.

The Chunipai Losar maybe rooted in the East but all Bhutanese citizens of those gone by days laboured to keep the State and the many layers of feudal hierarchy well stocked and fed. It is important that we join hands and hearts to pay tributes to all our ancestors for bearing the burden of funding the State administration and contributing to national sovereignty.

In today's parlance, this day could be the 1st of March for the Payers of Personal Income Taxes the final payment day being the last day of the month of February. But today we do not bear the pain of sweating from the bones or heartburns from oppressions that were prevalent during those feudal and theocratic history.

I feel I celebrated the Day in the most satisfying way.  Reading Prayers to Jampelyang under the shade of a garden umbrella. It was bright and warm with the sun shining and constant supply of drinks and snacks. And the great weather during this historic memorial observation made a Great Day !  Thank you most Kadrinchhewai honourable ancestors of all regions of Bhutan for the national dignity you have cultivated for all generations of Bhutanese.

Saturday, January 9, 2016

Pathankot a Tremor that's still shaking India to the national core.

How could six Terrorists terrorise the whole Indian National Security and Defence Apparatus for over 80 hours ( 4 days and 3 nights ) ? According to Indian version, the attack ended with death of 7 to 8 Indian Security Forces, many wounded and 6 Terrorists killed. The Terrorists not just breached inside the heavily fortified  Pathankot Air Base in Punjab but even had booby trapped Indian Security Forces in their own yard.

The Pathankot Air Base of Indian Air Force is supposed to be an impregnable fortified Forward Air Base, the forefront defence or attack base in case of war with Pakistan. And this nationally critical Air Base gets paralysed in the face of six suicidal Terrorists Team alleged to be sponsored by a Terrorist Wing based in Pakistan.  

The Government of India is so momentarily confused that it is now reduced to looking towards Pakistan to take counter measures against such deadly Terror Group. Pakistan Prime Minister Nawaz Sharif though seems sympathetic to the situation of Prime Minister Modi  of India , is in no better position than India to combat Terror campaigns especially if it is conducted by ISIS. It is not at all clear who or which Terrorists Wing in Pakistan has such precise capability to take upon a highly and heavily fortified Air Base of India that too located in such a security sensitive Punjab State of India. The  boldness and the lightening precision smacks of ISIS which has publicly threatened to attack India. But so far in public, India is accusing groups in Pakistan. ISIS is such a Terror to many. In fact the  extraordinary American Statesman Henry Kissinger a Jew by birth is now calling  for a Hitler type of action against ISIS. Things have to be pretty bleak for a Jew to turn to Hitler to save the world.

In India, apart from the unshakable national nervousness, suspicions abound in both civil and military establishments on possible inside betrayals. Pathankot overshadows all other attacks attributed to Terrorists from Pakistan such as that of Parliament Building in Delhi and Mumbai multiple attacks. Those were kind of very soft targets compared to a heavily fortified military base. Incredibly Indian Intelligence was supposed to have had some advance information on an imminent attack and yet India found herself paralysed when the attack happened. Really sorry for those who died and those wounded.

Friday, January 8, 2016

Rediculous in many ways but the Nation has decided

( blogging the fb status of 7th Jan.)

Doctors cannot practice their profession once they have resigned from Government Service.

Retired Judges cannot practice law in the Royal Courts of Bhutan.

Now we need a law that bans former Dratsang Lopens from officiating at religious ceremonies; Retired civil servants from political posts and Beauty Queens from marrying.

Maybe in the near future Bhutan will come up with a law that mummifies senior citizens upon retirement.

Why do we promote such vindictive hurtful laws in the supposed land of Compassion and in a age of Democracy ? Why is it considered a crime or unethical to make honest living from skills gained over the years ?

An acknowledgement for views expressed on " Rediculous in many ways but the Nation has decided "

I want to express my appreciation to all for freely expressing your thoughts. My special thanks to Dasho Tashi Dorji of National Council and Dasho Nima Wangdi former Health Secretary because both Health Ministry and National Council are part of the problems under discussions here.

My own deduction is that the rule presently enforced by the Health Ministry and the decision of the National Council will have to give way to Trends Beyond their Comprehension.

As Dasho Nima Wangdi has pointed out these rules are of pre- democracy days and so the present Government or NC are not the original source. The fault of present NC Body and the present Government is their refusal to change the rules in the light of present  situations. Again we cannot blame every MP in National Council or every Minister in the Cabinet.

Last year the Government appointed a former drangpon who had resigned from Judiciary Service as Attorney General. This I felt was a welcome trend that highlighted necessary evolution in thought process of a emerging democratic nation.

Likewise if a former drangpon can represent the Prosecution in the Royal Court of Justice then ex- drangpons have to be allowed to represent the Defence in the Royal Court of Justice. This is what I mean when I said ' trends beyond their comprehension '

Also OAG is full of lawyer colleagues of Judges who preside  over the present Royal Courts of Justice. OAG lawyers are also deservingly being appointed as drangpons.  And  even many lawyer Jabmis in private law practice are classmates of the present drangpons. More than that Drangpons are not isolated individuals. They have families, friends and community ties. The system must learn to trust the drangpons to do justice to their entrusted judicial responsibilities. The retired or ex- drangpons should not be victimised on flimsy grounds that appear more of vindictiveness.

And as for medical doctors, the fact was a few months before the 108 National Day 17th December,2015, a former Dungtso was stopped from practising his trade. There was a very compelling history making letter that Kuensel carried from the Dungtso against the dictum of the Heath Ministry set up Body. Then on the National Day, His Majesty awarded this very officially persecuted Dungtso the National Gold  Medal for his service to the Nation from the time of the Third King and requested him to continue serving the people in medical need. This is what I mean when I said, ' trends beyond their comprehension '.

We have well educated and intelligent leaders and law makers. What is lacking is their devotion to honestly think over a situation or a problem. The tendency is to speak because they have the forum and make decisions because they have the powers. If every MP felt he or she is there to serve all and not carry out some parties' bidding, maybe laws would be less vindictive and personalised.

I must also point out that the National Assembly approving ex- drangpons practising in High Court and Supreme Court would have served no useful purpose if the Supreme Court had not  lately issued a legal directive in judicial process. Now High Court can conduct a full Hearing just like the Dzongkhag Courts unlike the previous restrictive judicial procedure.

Tuesday, January 5, 2016

The question of Local Government Election Timing legality.

It seems that the Constitution is very clear that Local Government Election is to be held upon completion of 5 year term unless politically prematurely dissolved. And this is not happening today.

It is not about who is right or wrong. It should be in the national interest to get such democratic process constitutionally right from the onset. Local Government concerns twenty Dzongkhags not just the three Thromdes facing election presently.

We seem to have a pro active Supreme Court. Various legal directives have been issued to streamline the process of judicial justice. In like manner, I hope the Supreme Court takes a proactive consideration of the present scenario.

Supreme Court is a living and nationally responsible esteemed Institution. It cannot remain a Monument silently witnessing if unconstitutional political /election process takes place.  

Is it proper for Supreme Court to submit its view to His Majesty the King without being called upon as to where the Constitution stands on the particular case of when it is constitutionally correct timing to hold Local Government Elections ?

It is the right time to intervene by the Constitutional Authorities. In the early formative years, the democratic political process of the nation need the constitutional guidance and intervention of the Supreme Court and His Majesty the King. Everything should not be left to Election Commission because this constitutional agency is not the ultimate authority in the interpretation of the Constitution.

Should the Local Government Election be held prematurely similar to National Council or after completion of full term similar to National Assembly ?

Like the Interim Government in the absence of Cabinet and National Assembly, the Local Governments also have a full functional Team headed by an Executive Secretary.  I think all the administrative structures are in place for Local Government Election to be held as so determined by the Constitution.